Filed 1/18/23 Stacy V. v. Frank B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

STACY V.

,
Respondent

,

v.

FRANK B.

,
Appellant

. B 316943

(Los Angeles County Super. Ct. No. LF005780 )

APPEAL from an order of the Superior Court of Los Angeles County, Firdaus F. Dordi , Judge. Affirmed. Frank B., in pro. per., for Appellant.
Cohen and Schwartz and Kenneth L. Schwartz for Respondent

.

___________ _____ __________

Frank B. ( Father ) appeal s from a family court order denying his request to modify a final custody ord er that gave
S tacy V. (Mother) sole legal and physical custody over their two
children

. Father contends the family court erred in excluding2

from evidence reports prepared by the Department of Children and Family Services ( DCFS ) and other documents offered to support hi s request, and he was entitled to joint custody because
M other alienated the children from him and violated existing
visitation orders. The court did not abuse its discretion in excluding F ather’s evidence . Further, Father ’s admissible
evidence did not c ompel a finding there was a significant change
in circumstances such that a modification would be in the
child ren’s best interest

. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Custody Order s This is Father’s second appeal in this child custody action.
As we described in Stacy V. v. Frank B. (Dec. 18, 2019,
No. B293010 [nonpub. opn.])

, Mother lives in Tarzana and works as an elementary school teacher. Father lives in Woodland Hills, about 20 miles from Mother, and has been retired since 2008.
Mother and Father met in 2009 , and t hey have two children together , Brendan (born in 2010) and Luke (born in 2011). Mother and Father never married or lived together.
On September 29, 2011 M ot her filed a petition in family court seeking sole legal and physical custody over the boys and child support. Father filed a cross

- petition seeking joint legal and physical custody , with no child support

. O n September 30,
2013 the family court 1 issued a pendente lite custody order awarding Mother sole legal and physical custody, with visitation
for Father

, after finding Father engaged in “ unrelenting attacks” on Mother and refused to cooperate in coparenting.

1 Commissioner Steff R. Padilla.3 On May 5 , 2016 the family court 2 granted Father’s request for joint legal and physical custody in light of his completion of classes and therapy and on the recommendation of the court

appointe d child custody evaluator

. The court imposed condit ions to facilitate coparenting , including that Mother and Father could only communicate with each other through Our Family Wizard (OFW) messaging software , and the court admonished each parent to “ refrain from controlling the other parent in his or her parenting ” and “ to limit critical, insulting and destructive emails to the other parent .”
A t a May 24, 2017 settlement conference

, Mother and
Father executed a stipulation and order of settlement providing
for joint legal and physical custody with a parenting plan and
allocation of child

- rearing expenses . A stipulated judgment was entered on August 17

. However, o n April 5, 2018 Mother filed a postjudgment request for order a ward ing her sole legal and physical custody of the boys

. Mother argued Father had been extremely controlling and incapable of coparenting, and he would lash out at her “almost daily” o ver OFW

, interfering with her custodial time and making handoffs and practical
accommoda tions difficult

. Mother also asserted the boys spent too much time shuttling between the parents’ homes and school;
Father had become “ obsessed ” with the boys’ participation in sports; Father proposed to separate the boys for custody purposes
because Luke was more athletically inclined than Brendan; and Father had taken the boys to a physical examination without Mother’s consent

. On July 27 , 2018 the family court granted Mother’s request
and award ed her sole legal and physical custody of the boys ( the

2 Judge Shirley K. Watkins

.4

July 2018 custody order) . The court found Mother presented credible evidence of changed circumstances adversely impacting the boys

. The modified parenting plan provided that during the school year Father had visits with the boys on the first, third, and
fifth weekends of the month and Tuesday and Thursday
afternoons

. During the summer the parents had custody of the boys on alternating weeks

, as well as alternating holidays and
vacations

. Father appealed the modified custody order , and on
December 1 8, 2019 we affirmed . ( Stacy V. v. Frank B., supra

, No. B293010 .) We held, “ T he trial court did not abuse its discretion in finding Father ’ s continued abusive behavior toward Mother in sending her dozens of messages berating her parenting style constituted a changed circumstance supporting a grant of sole legal and physical custody to Mother because of Father ’ s inability to coparent their sons and his interference with
Mother ’ s custodial time .” ( Id

. ) We noted Father could prospectively seek joi nt custody based on a showing of changed
circumstance or that a modification of the visitation schedule was in the boys’ best interests.

B. Father’s RFO T

o Modify Custody On January 21, 2021 Father filed a request for order (RFO) seeking modification of th e July 2018 custody order to award him joint legal and physical custody of the boys with an equal
timeshare

. On March 2 5 the family court set an evidentiary hearing on the RFO and ordered the parties to submit
declaration s setting forth their positions and attaching supporting documents as exhibits. The court clarified that the5

declarations would serve as the parties’ direct testimony, with

cross

- examination in court. 3
In his A pril 22, 2021 declaration , Father asserted as changed circumstan ces that Mother alienated the boys from
Father ( especially 10

- year

- old Brendan ) , and th e parental
alienation constituted emotional child abuse

. He also argued
M other repeatedly violated the July 2018 custody order

, interfering with his visitation

. Father averred that by Mother’s

own admission, t he boys were “‘doing great’” at the time of the July 2 018 custody order

, yet by September 2020 Brendan was
suicidal. 4 Father stated Raychel Richard, a DCF S social worker who investigated a March 2019 welfare referral concerning the boys

, determined that Brendan’s therapist ( Anne Marsh ) was biased against Father

, and this had the potential to exacerbate Brendan’s alienation from Father

. Father’s declaration quoted numerous excerpts from “De livered Service Logs” produced by DCFS , which document ed

3 Judge Firdaus F. Dordi presided over the case in 2021 and made all rulings at issue on appeal

. M other filed a declaration on April 18, 2021 opposing the RFO, but her declaration is not included in the appellate record

. On May 11 Luke and Brendan’s
court

- appointed attorney filed a declaration in opposition to the RFO.

4 Father attached and the family court admitted into evidence Mother’s September 30, 2020 declar ation opposing an earlier request for order , in which Mother wrote

, “Our son Brendan has been experiencing suicidal episodes, has been physically hurting himself. Brendan is in no condition physically, emotionally and/or mentally to commence any sort of

r eunification therapy with [Father] at this time, or in the near future.”6

several social worker s’ investigation s of both the March 2019
welfare referral and a second referral in June 2020 (the DCFS reports)

. The March 2019 delivered service logs contained entries prepared by social workers Rebecca Megerdichian and Shannon
Morris describ ing their own observations and conversations with
witnesses . The logs also contained information the two social
workers received from Richard, who had performed an assessment of Mother’s ho me on March 23, 2019 . The June 2020 delivered service log co ntained entries reflecting written and oral
statements from R ichard to Morris describing Richard’s
observations and conversations with witnesses

, as well as
information conveyed to Richard by other social workers. Father’s declaration quoted portions of these reports indicating
social workers observed M other trying to alienate the boys from
Father by

, among other things, badmouthing Father , c oaching
the boys to lie about Father to the social w orkers , and encouraging Brendan to communicate constantly with Mother during Father’s custodial time. Father also cited these reports to show Mother’s home was unsafe because it was dirty ; she allowed the boys to play video games and eat junk food with ab andon ; and
she controlled what they c ould wear

. Father’s declaration described his participation in a continuing legal education seminar titled “Reunification in Case involving Parental A lienation” and cited (but did not attach ) several “learned treatises” ostensibly defining parental alienation
and des cribing the typical behaviors utilized by parents to
alienate children . F ather attested, “I have observed our son Brendan exhibit all of these behaviors during his custodial timeshare visits with me, most pointedly during the past two (2)

years

. . . .” Father also cited publications stating parental
alienation is a form of “ ‘ emotional child abuse ’ ” that has adverse7

impacts on a child’s welfare

, including loss of self

- respect, low
self

- esteem, guilt, anxiety, depression, lack of impulse control, impaired relations, and educational problems

. Father stated he
had observed Brendan exhibiting all of these behaviors. For example, Brendan was anxious , he slept with his older half

- sister because he was scared at night, he did not wish to visit with Father, he was addicted to video games

, and he ate junk food and

sweets . In addition, Father recounted that Marsh told him that she planned to start Brenda n on anti

- depressant drugs to counter his suicidal thoughts. Finally, Father’s declaration described Mother’s alleged
violations of t he July 2018 custody order. These included an
incident on December 29 , 2020 when Brendan refused to go from
Mother’s vehi cle into Father’s vehicle during a scheduled exchange . Father stated he heard Mother tell Brendan, “‘You don’t have to go with him if you don’t want to.’” Father called the police, and the Los Angeles County Sheriff’s Department (LASD) prepared an i ncide nt report , which F ather attached to his
declaration . Father cited another occasion on January 10, 2021 when Mother refused to acknowledge Father ’s visitation time

. 5
Father also averred Mother worked to frustrate the custody plan

5 OFW messages between Mother and Father attached to Father’s declaration and admitted into evidence showed Mother and Father disagreed o n who had custody of the boys under the July 2 01 8 custody order for the night of Sunday, January 10, 2021 continuing into Monday. Father asserted a school closure on Monday operated to extend his first

- weekend

- of

- the

- month visitation to Monday. However, Mother contended her winter vacation schedule superseded Father’s visitation because she and the children were concluding a winter vacation , which allocated custody for Sunday evening to Mothe r

.8

by failing to include Fa ther’s contact information on school registration forms ; refusing to provide Father with copies of the boys’ insurance and social security cards ; prevent ing Brendan
from participat ing in evening video calls with Father during her
custodial time ; taking photographs of the boys during calls with
Father and sen ding them to Marsh; instruct ing Brendan to delete images on Father’s phone and tablet that would have revealed Brendan was not participat ing in calls with Father ; mo ving wi th the boys to a different residence in late 2019 without advising Father; discuss ing court orders with the boys; and providing
Father “false and misleading information” about their hybrid school schedule during the COVID

- 19 pandemic. On May 11, 20 21 minor’s counsel Gregory Pedrick served evidentiary objections to the 22 exhibits attached to Father’s declaration on the grounds of lack of foundation, lack of authentication, hearsay, and (as to some exhibits) improper opinion testimony

. On May 14 the court filed “ [p] rovisional ”
written rulings on the objections, sustaining objections to the DCFS reports and LASD incident report, as well to emails authored by Marsh, Richard, and Pedrick, but overruling objections to the tr anscripts of prior proceedings , party declarations

, and correspondence between Mother and Father. 6

6 The family court also sustained P edrick’s objections to Father’s submission of declarations executed years earlier by Father’s adult children and a prior therapist, school registration forms, and photographs Father alleged Brendan had tried to delete from his phone and computer.9

C. Evidentiary Hearing The family court conducted an evidentiary hearing on the RFO on May 21 and August 6, 2021. Mother was represented by
counsel ; Father was self

- represented ; and Brendan and Luke were represented by Pedrick

. Mother’s attorney called DCFS
social workers Morris and Richard as witnesses . In addition, the

court allowed Father and Mother to provide direct testimony as
to recent develo pments

. 7
Morris testified she was the DCFS supervising social
worker assigned to a 2019 referral, and she conducted some of
the interviews in connection with the investigation , including
with Father and the boys at the DCFS office and with Mother over the telephone . The referral alleged possible physical abuse by Father, the children were afraid of Father and did not want to go to his house, and Father was allegedly shoplifting in their presence. Based on its investigation, DCFS concluded the
ref erral was unfounded as to neglect and alleged physical abuse by Father, and inconclusive as to emotional abuse by either
Father or Mother. Morris did not recall Father raising Mother’s parental alienation , and in any event, that was not her role to diagno se . However, M orris found “it was possible that the [children were ] being asked to say things that were not true

. ”
S pecifically

, Morris believed Mother asked the children to exaggerate complaints about living with Father, including that

7 At the May 21, 2021 hearing, Mother’s counsel briefly

cross

- examined Father about his arrest for shoplifting in 2019 and completion of a diversion program, but the family court curtailed the examination on the basis of relevance. Mothe r ’s counsel also cross

- examined Father about his assertion his actual parenting time was l ess than what the July 2018 custody order provided

. Father did not cross

- examine Mother.10

there was “hittin g” occurring in his home, they had a fear of
Father

, and they disliked the food and clothing at his home. Morris opined that a parent coaching a child could “in extreme
situation s rise to the level of a type of emotional abuse

, ” but she
did not find the s ituation in 2019 to be extreme. Morris also felt Marsh, Brendan’s therapist, was “aligned or only spoke to [Mother] and the children

. ” However, Morris did not recall making a finding Marsh was biased again s t Father. On redirect examination, Marsh testified she had a specific recollection she
reviewed the 2019 DCFS report for accuracy. Based on this admission, Father moved to admit the report into evid ence. The court held the report was not admissible, finding that even if it had been authenticated, it constituted hearsay and Father had not established that it fell within the business record exception to the hearsay rule

. 8
Richard testified she firs t visited with Brendan and Luke in Mother’s home on March 23, 2019. During the visit, the home

was messy , and there was a strong odor of animal urine

. Brendan and Luke were shy and unwilling to speak with her

. T hey whispered to Mother

, and “Brendan was holding on to his

m om pretty tightly.” Richard took Mother aside and expressed concern that Mother was speaking negatively about Father in the boys ’ presence

. Mother was defensive and responded that Father
was a thief and a criminal. Asked if she saw si gns of emotional
distress in the boys , Richard responded, “ B ased on the children not being comfortable talking to me and also the negative comments made in front of the children, I did express my concern

8 Although the family court advised Father he could potentially still use the report to refresh Morris’s recollection, Father did not attempt to do so

.11

to the m other.” In the course of her investigation, Richard was also c oncern ed that Brendan spoke with Mother excessively during visit ation with Father, sometimes calling Mother multiple
times , and Mother was interfering with Father’s custodial time

. She observed anxiety in Brendan (but not Luke), and she believed Brendan was making inaccurate statements to social workers under Mother’s influence. Richard also spoke to Marsh
and found she “ had a negative feeling about the father” and “failed to engage him in the therapeu tic se tting

. ” Further, Marsh was sharing with Mother information obtained in therapy
sessions with Brendan

. However, Richard did not have concerns regarding the children’s safety in either Mother’s or Father’s
home ; she did not find physical abuse in eit her home ; and as to Mother, “the emotional abuse did not rise to the level of
intervention. Therefore

, it was referred to the therapist and deemed unfounded.” Richard recommended Father and Brendan seek joint counseling, and Mother was receptive to the i dea.
Father testified that Mother continued to alienate the
children from him . D uring Mother’s custodial time, Brendan
would not participate in calls with Father “99 percent” of the time, and Father could see Mother hovering over the boys during video calls. Mother also persisted in furnish ing the boys with clothing and food for their visits with him

. Mother testified Father had access to both boys withou t her
interference whenever he called, although sometimes Brendan
would be short with Father of his own accord

. Mother did not
monitor the boys’ calls with Father

, although she would
sometimes hear the calls when Father call ed while they were in Mother’s car. Mother acknowledged Brendan brought his own
clothes to visits with Father . Mother was not involved in Brendan’s packing and felt Brendan was “old enough to do what12

he needs to do.

. . , whatever he wants to bring.” Similarly, Brendan packed himself snacks without Mother’s involvement. Although it was then summer vacation and Father had the boys on alternating weeks , Father often brou ght Brendan to Mother’s
house for a few hours during Father’s custodial time while Luke

was at his sports practice , b ecause the parents agreed Brendan should not sit on the sidelines in the heat while Luke practiced

. The family court questioned Mother about how Brendan was doing

. Mother stated Brendan was doing very well in therapy . She believed his anxiety had lessened and he was faring
better because he was able to see Mother occasionally during his
weeks with Father

, in contrast to the previous summer when
B rendan struggled with weeklong visits . Father agreed with
Mother that “since this year, it’s been better.” The court also asked Mother if she wanted to address Richard’s testimony.
Mother conceded her house was not perfectly tidy during Richard’s March 2019 visit, but the house was clean and stocked with food, and there had never been any complaints about the children being dirty. Mother testified she did not limit Father’s
access to the boys during her custodial time

, adding

, “They could call their dad any time. I don’t limit that. I encourage them to have a relationship with [Father].”

D. The Family Court’s Order Denying the RFO After the conclusion of testimony and closing arguments, the family court announced its findings from the bench

. 9 The
court found Father failed to show changed circumstances concerning parental aliena tion , explaining, “ [Father] not only continues to have the parental time that was allocated to him

9 Father withdrew his request for a statement of decision.13

under [the July 2018 custody order], but he als o has telephonic
contact with the children. To the extent that he feels that Brendan, who’s now 10, does not want to have the full range of that contact for some of those calls, .

. . he hasn’t demonstrated that that’s [Mother’s] doing.” The only deviation from the custody order had been Brendan’s visits with Mother during
Luke’s summer sports practice, and both parents supported this

. The court also found Father’s testimony that Mother hovered
over the boys during video calls was “not credible

, ” and Father in any event did not present e vidence Mother was an “active participant and trying to control the nature of the communication, or telling the kids to get off.” T he court credited Mother’s testimony she was not sending food or cloth es with Brendan, and instead Brendan was packing his o wn bag. The court found Father’ testimony he had virtually no one

- on

- one time with Brendan to be valid but noted this had been a recurring feature in the case not caused by Mother

, and Mother was supportive of increased time between the two . The court

cr edited the social workers ’ testimony and expressed concern about the condition of Mother’s home

, but it found the testimony did not demonstrate parental alienation. The family court also found Father did not meet his burden to show changed circumstances with respect to Mother ’s violati on of the July 2018 custody order . The court found Brendan ’s refusal to go with Father in December 2020 was not Mother’s fault, and Mother credibly testified in her declaration opposing
the RFO that she had not denied Fathe r access to the children’s health insurance and social security information

. Likewise, Father did not demonstrate he was not a parental contact with the children’s school.14 The family court found , “ T here have been issues that have
arisen since the 2018 or ders that the court does find are
considerable. One was [Father’s] arrest and the investigation
that stemmed f

ro m that. Another are the concerns that were raised to the court about Brendan’s health and welfare with respect to what he was going through and potentially still going through

. . . . [T]hose things are significant circumstances. ” However, the court concluded these circumstances did not constitute changed circumstances support ing joint custody for
Father . Rather the court recommende d (but did not order) conjoint therapy for Father and Brendan with an independent therapist. On August 6, 2021 the court issued a minute order with findings consistent with its ruling from the bench

. Father timely appealed. 10

10 In his opening brief, Father purports to seek review of the family court’s August 24, 2021 order striking his request to disqualify Judge Dordi under Code of Civil Procedure section 170.1. Father’s notice of appeal did not identify the Augu s t 24, 2021 order

, and the issue is therefore outside the scope of our review

. (See Conservators hip of Edde (2009) 173 Cal.App.4th 883, 889

- 890 [appellate court ’ s “analysis is limited only to review of the order” identified in the notice of appeal]; Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073 [separately appealable order “is not reviewable on appeal, unless [the order] is expressly specified in a notice of appeal”]

. ) In addition , t he exclusive means for review of a determination on the disqualification of a judge is by petition for writ of mandate in acco rdance with Code of Civil Procedure section 170.3, subdivision (d) , not an appeal from the order

. (See Curle v. Superior Court (2001) 24 Cal.4th 1057, 1059.) Father also purports in his reply brief to seek review of the family court’s August 1 6 and September 20, 2022 orders denying15 DISCUSSION

A. Legal Standard for Custody Modification

“ U nder California’ s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child.” ( Montenegro v. Diaz (2001)
26 Cal.4th 249, 255 ( Montenegro ).) In de termining the best
interest of the child , the court must consider “ all relevant factors, including the child ’ s health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and
the nature and amount of the child ’ s c ontact with the parents. ” ( In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955

- 956 ( Brown & Yana ) .)

“ O nce the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement
is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements

— and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker

— weigh heavily
in favor of maintainin g ’ that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent
seeks modification of a f inal judicial custody determination. ” ( Brown & Yana , supra , 37 Cal.4th at p. 956 .) Under the changed circumstance rule, “ a party seeking to modify a permanent

his subsequent requests for modification of custody. These orders are not encompassed within Father’s notice of appeal and are not properly before us. ( Conservatorship of Edde , supra , 173 Cal.App.4th at pp. 889

- 890 .)16

custody order can do so only if he or she demonstrates a significant change of circumstances ju stifying a modification

. [Citation.] .

. . [A court] should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s
best interest.” ( Montenegro , supra , 26 C al.4th at p. 256 ; see In re Marriage of McKean (2019) 41 Cal.App.5th 1083
, 1089

- 1090 [family court’s modification of custody order from joint to sole custody was abuse of discretion because of lack of evidence of changed circumstances] .) Generally, “[w] e review custody and visitation orders for an abuse of discretion, and apply the substantial evidence standard
to the court ’ s factual findings .” ( In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497 ; see In re Marriage of Burgess (1996)
13 Cal.4th 25, 32 [noting abuse of discretion standard applies to review of custody and visitation orders, but applying substantial
evidence standard to factual determinations supporting relocation order].) “Under this test, w e must uphold the trial

court ‘ ruling if it is correct on any basis, regardless of whether such basis was actually invoked. ’ ” ( M ontenegro , supra , 2 6 Cal.4th at p. 255 .) However, a different standard app lies where, as here, the appellant had the burden of proof in the family court. “‘In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misl eading to characterize the
failure

- of

- proof issue as whether substantial evidence supports the judgment.’ [Citation.] ‘ Thus, w here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.’” ( Juen v. Alain Pinel Realtors, Inc

.17

(2019) 32 Cal.App.5th 972, 978

- 979 ( Juen ) ; accord, Dreyer ’ s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 ( Dreyer’s ) ; In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) “‘Specifically, the question becomes whether the appellant ’ s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. ”’ ” ( Jue n , supra , 32 Cal.App.5th at p. 979; accord, Glovis America, Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71; Dreyer ’ s , supra , 218 Cal.App.4th at p. 838.) “‘[W]here

. . . the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor.’” ( Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 734; accord, Bookout v. State of California ex rel. Dept. of Transportation (2010)
186 Cal.App.4 th 1478, 1486.) “That is because unless the trial court makes specific findings of fact in favor of the losing [party], we presume the trial court found the [losing party ’ s] evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence.” ( Bookout , at p. 1486.)

B. The Family Court Did Not Abuse Its Discretion in
Ex cluding Father’s Hearsay Evidence Father contends the family court erred in excluding the DCFS reports and other exhibits attached to his declaration. We
review the family court’s evidentiary rulings, which principally involved the application of the hear say rule, f or an abuse of18

discretion. ( People v. Waidla (2000) 22 Cal.4th 690, 725 [“an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hea rsay nature of the evidence in question”] ; accord, People v. Yates (2018) 25 Cal.App.5th 474, 484;

see Zanone v. City of Whittier (2008) 162 Cal.App.4th 174, 190, fn. 21 [“We review the exclusion of hearsay evidence on the ground it does not qualify for ad mission as a business record for abuse of discretion.”].) With respect to the DCFS reports, the family court found Father failed to establish the reports were admissible under the business records exception to the hearsay rule. 11 The Evidence Code provi des two exceptions for agency reports relevant here. Evidence Code section 1280, the official records exception, provides, “ Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule
when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [ ¶ ] (a) The writing was made by and within the scope of duty of a public employee. [ ¶ ] (b) The writing was made at or near the time of the
act, condition, or event. [ ¶ ] (c) The sources of information and method and time of preparation were such as to indicate its

11 On appeal, Father does not contend the DCFS reports were business records, nor does he argue for the application of another hearsay exception. Rather, he contends the reports were admissible because the “ the writers of the DCFS reports were witnesse s during the hearing, subject to cross examination. ” To the extent Father is arguing the reports were admissible as prior inconsistent statements made by Morris and Richard (Evid. Code, § 123 5 ), he does not identify any inconsistency between the witnesses’ trial testimony and their statements in the reports.19

trustworthiness. ” Evidence Code section 1271, the business records exception, sets forth similar requirements for records
made in the regular course of a business, except it also requires a custodian or other qualified witness to testify to the existence of the records and mode of preparation. (See Evid. Code, § 1271, subd. (c).) Father did not establish the foundational requirements f or admissibility of the DCFS reports under Evidence Code
section 1280 or section 1271 in either his declaration or at the evidentiary hearing. At most, Morris testified she remembered the 2019 DCFS report and would have reviewed the report for accuracy at the time of preparing it. But the document is not a single incident report; instead

, it contains approximately two dozen dated entry log s

. Further, it appears Megerdichian, not Morris, authored most of the entries. There was no testimony
about how thes e entries were created. Moreover, there was no testimony regarding the creation of the 2020 DCFS report, which
includes about 20 entries apparently authored by Richard. The court did not abuse its discretion in excluding the reports based on Father’s fai lure to lay a foundation for the business records exception. (See People v. Hovarter (2008) 44 Cal.4th 983, 1011 [ “ A trial court has broad discretion in determining whether a sufficient foundation has been laid to qualify evidence as a
business record .”]. ) Even if Father had established the DCFS reports were official records or business records, the family court did not abuse its discretion in excluding them. As this court explained in
Zanone v. City of Whittier , supra , 162 Cal.App.4th at page 192 in
af firming the trial court’s exclusion of a government agency’s records of employee exit interviews, “[E] ven if they had been established as business records, [the records] themselves20

contained hearsay statements regarding the employees ’ reasons for leaving f

or which no exception had been established. [Citations.] .

. . A summary of an inadmissible hearsay statement cannot be made admissible merely because it is repeated in a valid business record. ” ( Accord, Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205 [“[w]hen multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible”]; see People v. Sanchez (2016) 63 Cal.4th 665, 675 [“An emergency room report, for exa mple, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level.”].) The DCFS reports are replete with multiple levels of hearsay, and Father did not attempt to isolate the statements or to establish a hearsay exception at each level. For example, a
March 21 , 2019 entry authored by Megerdichian states, “CSW Megerdichian contacted [case social worker] Gorgi about the family’s past referral. .

. . [Gorgi] said she had spent time with the father and felt that [he ] was a caring parent and did not observe any alarming matter.” Father quoted the foregoing statement in his declaration and offered the reports for the truth of the matters asserted by Gorgi and others , yet he failed to establish any ground for admission of the embedded hearsay. In addition to the DCFS reports, Father challenges the exclusion of emails he received from Brendan’s therapists, including a September 28, 2020 email from Marsh stating
Brendan was at risk for self

- harm, and a March 17, 2017 e mail from Brendan’s former therapist Victoria Frantz stating, “I21

totally believe that you should have 50% custody.” Father contends the emails are admissible because “[Father] is the
custodian of records of his e

- mails.” 12 But the emails were properly excluded not because of a lack of authentication but because they contain hearsay. To the extent Father is relying on the business records exception under Evidence Code section 1271, there was no testimony that the emails fr om the therapists were made in the regular course of a business or that they were made at or near the time of the act, condition, or event. We also note the Frantz email was not relevant in that it predated both the August 2017 stipulated judgment and the July 2018 custody
order. The family court likewise did not abuse its discretion in excluding the 2015 declarations of Father’s older children Anthony and Isabella and Father’s neighbor John Storjev attesting to Father’s positive parenting in 2011 (when Brendan and Luke were babies). These declarations are hearsay and not relevant to whether there were changed circumstances after the July 2018 custody order. (See Perry v. Bakewell Hawthorne, LLC

12 Father also contends the family court improperly excluded a September 29, 2020 email from Pedrick forwarding Marsh’s September 28 email. Ho wever, the record does not reflect that the court excluded the email at the evidentiary hearing. Pedrick wrote, “Brendan has been exhibiting harmful ideation. Ms. Marsh needs to discuss the concerns and engage you with a safety plan while we address posi tive intervention.” (Underlining omitted.) The court allowed Father to examine Pedrick about the email and then ruled, “T o the extent that there ’ s another email, there ’ s one by M s. M arsh. S o that would be hearsay and we don ’ t have M s. M arsh here to test ify. ”22

(2017) 2 Cal.5th 536, 541 [“Declarations themselves are no t ordinarily admissible because they are hearsay.”].) Father also contends the family court erred in excluding all evidence Mother violated the July 2018 custody order. But the court admitted most of Father’s exhibits on this subject , including Mother’s c ommunications, and it did not abuse its discretion in excluding the others. The court excluded the December 29, 2020 LASD incident report, in which the reporting officer described an interview with Luke about Brendan’s refusal to get into Father’s
vehicle . The report contained two levels of hearsay, and Father did not establish the official records exception. The court also excluded a printout of photographs designated as “[r]ecently [d]eleted” on Father’s electronic devices. Father authenticated the ph otographs in his declaration. However, the photographs had no relevance absent Father’s hearsay statement that “Brendan stated his mother instructed him to delete any photos that included nightly Facetime calls that indicate I was not able to speak with h im during his mother[’]s custodial timeshare.” Finally, the court excluded attendance reports from the boys’ elementary school listing Mother as their contact. Father did not establish a foundation for admission of the report, and in any event, as the co urt explained to Father, “The printout that you have from the school doesn’t verify that you’re not a contact. It doesn’t verify that there’s somebody other than her who’s a
contact.”

C. The Admissible Evidence Does Not Compel a Finding a Custody Modifica tion Would Be in the Boys’ Best Interests Father contends substantial evidence supported
modification of the July 2018 custody order to award him joint legal and physical custody of the boys. Because the family court23

found Father failed to carry his burde n to show changed circumstances supported modification of the 2018 custody order, the question before us is whether the evidence compels a finding in Father’s favor as a matter of law. (See Juen , supra , 32 Cal.App.5th at pp. 978

- 979; Dreyer ’ s , supra , 218 Cal.App.4th at p.
838 .) It does not. Father argued there were two changed circumstances: Mother’s efforts to alienate the boys from Father (especially Brendan), and Mother’s repeated violations of the custody
order. 13 With respect to parental alienation, the family court found credible Mother’s testimony that she did not interfere with the boys’ visits; specifically, she did not monitor the boys’ calls and she did not direct Brendan to bring food or clothing to
Father ’s house. Nor was there evidence she restricted Brendan from calling or spending time with Father. The court credited Father’s testimony he had virtually no one

- on

- one time with
Brendan , but the court found this was not attributable to
Mother’s conduct. The DCFS social workers

— whom the court
found credible

— testified that Mother in 2019 engaged in concerning behaviors such as speaking negatively of Father in front of the children, coaching the children, and maintaining
excessive contact with Brendan. How ever, Morris testified the social workers were not qualified to diagnose parental alienation, and both Morris and Richard testified the allegation Mother emotionally abused the boys was “unfounded.” Moreover, Father did not introduce any admissible eviden ce the boys suffered from

13 Father argued there was a third changed circumstance

— that Mother committed emotional child abuse

— but the argument was based on his contention Mother engaged in parental alienation, which constituted child abuse.24

either parental alienation or emotional abuse

— he did not call any expert witnesses or treating therapists, instead relying solely on his own unqualified opinion based on texts and articles he characterized as “learned treatises” t hat were not in evidence. Father also failed to show Mother violated the July 2018 custody order. There was no admissible evidence Brendan’s refusal to go from Mother’s car into Father’s car during a
scheduled hand

- off on December 2 9 , 2020 was due to Mo ther’s conduct, and Mother’s rejection of Father’s demand to deliver the boys for a Sunday overnight visit on January 10, 2021 was based on a reasonable interpretation of the custody order (that she was entitled to custody of the boys as part of her winter vacation custody time). With respect to Mother’s other alleged custody violations, the family court found Mother credibly testified, contrary to Father’s allegations, that she did not deny Father access to the boys’ health insurance, social security card s, and information pertaining to their schooling. Father is correct there was undisputed evidence Brendan’s
mental and emotional well

- being deteriorated after the July 2018 custody order, and in late 2020 Brendan expressed harmful
ideation . Further, Br endan’s therapist believed there was an
acute threat of self

- harm. This was certainly a significant changed circumstance. However, Father failed to present any evidence showing that an award of joint physical and legal custody to Father would benefit Bre ndan

. (See Montenegro

, supra , 26 Cal.4th at p. 256 [the court “ should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in
the child’s best interest” ].) Specifically, Father did not present any evidence, expert or otherwise, as to the underlying nature of Brendan’s struggles or the best practices to address them.25

Indeed, Father agreed with Mother’s assessment that breaking up Brendan’s week

- long summer visits with Fath er in 2021 with occasional afternoon visits with Mother improved Brendan’s
emotional well

- being compared to the summer of 2020.

D. Father Has Not Shown Additional Errors by the Family
Court Father’s additional contentions are not persuasive. First,
Fathe r contends the family court’s denial of the RFO is
inconsistent with our observation in Stacy V. v. Frank B., supra

, No. B293010 that “ Father can prospectively seek to restore joint custody based on changed circumstances, including cessation of
the abusive messages, reduction in parental conflict, control of
his ‘ obsessive fixation ’ with the boys ’ athletic grooming, and compliance with the court ’ s orders. Further, even without a change of custody, Father could in the future present evidence
that a modifica tion of the visitation schedule (for example, by restoring a weekend night) is in the boys ’ best interest. ” There is no inconsistency. In his RFO, Father did not argue he moderated the behaviors that led to his loss of custody, nor did he request a limited modification of the vacation schedule. Although we noted in our initial opinion that Father might in the future regain joint custody of the boys, the changed circumstances rule sets a high bar in recognition of “ ‘the paramount need for continuity and stability in custody arrangements

— and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker.

. . .’” ( Brown & Yana , supra , 37 Cal.4th at p. 956.) Second, Father argues there is a rebu ttable presumption he was entitled to joint custody under Family Code section 30 4 4, subdivision (a), which provides, “U pon a finding by the court that26

a party seeking custody of a child has perpetrated domestic
violence within the previous five years

. . 

### . against the child or the child’s siblings

. . 

### . , there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a

person who has perpetrated domestic violence is detrimental to
the best interest of the child.

. . . ” This provision does not apply because there has been no finding Mother perpetrated domestic violence against either of the boys. To the contrary, after investigating referrals in 2019 and 2020, DCFS found the allegations of Mother’s physical or emotion al abuse to be
unfounded. Third, Father argues the family court took advantage of his
self

- represented status and “took over question[ing] of the DCFS witnesses in effect suppressing evidence.” However, t here is no rule that prevents a judge from questi oning a witness. Further, while it is true the family court posed numerous questions to the DCFS witnesses, particularly during cross

- examination, the court did not restrict Father’s examination, and its questions did not have the effect of “suppressing e vidence.” To the contrary, many of the court’s questions, especially during Father’s direct examination, aided Father by reframing questions that were confusing or objectionable or elicited unclear responses. Our review of the hearing transcript shows th e court to have been very patient with Father and to have taken pains to ensure a full and fair hearing. Finally, Father contends the family court erred in denying his request to examine Pedrick (the boys’ attorney) at the evidentiary hearing. The court advised Father that Pedrick was neither a party nor a percipient witness, and the court invited Father to make an offer of proof. Father stated only that he wanted to examine Pedrick about Pedrick’s September 28, 202027

email stating Brendan had been exhib iting harmful ideation. The court allowed Father to question Pedrick in order to
authenticate the email and the attached email from Marsh. On appeal, Father contends Pedrick was a percipient witness because he had “written his opinion of the proceedings in a responsive declaration” opposing the RFO. However, although Pedrick filed an opposition as counsel for Brendan and Luke on a mandatory family law form styled as a “responsive declaration to request for order” (Judicial Council FL

- 320), Pedrick’s decl aration asserted a legal position on behalf of the boys and did not contain factual testimony. 14 The court therefore did not abuse its discretion in refusing to allow Father to question Pedrick other
than about the emails.

14 Pedrick wrote in opposition to the RFO , “Legal custody has been adjudicated over the course of numerous hearings, trials, and appeals. [Father] has failed to introduce any credible, admissible evidence supporting his claim that there has been a significant change in circumstances warranting a modification of the current, operative child custody orders.”28 DISPOSITION

We affirm the fam ily court’s August 6, 2021 order denying the RFO. Mother is entitled to recover her costs on appeal.

FEUER, J.
W e c oncur :

PERLUSS, P. J.

SEGAL , J.